Anna Yarde talks about Post-adoption contact in her latest article

The Family Court’s approach to post-adoption contact is shifting.

Whilst “permanence”, “stability” and “settling” remain important considerations, there is also now a greater emphasis and focus on “identity”, “narrative” and “trauma-informed” work. New technology, the rise of social media and the accessibility of ancestry DNA testing has also changed the context in which decisions about the adoption and long-term welfare of children are made.

To understand these changes, it is important to reflect on the experiences of children who were adopted in the past. The concept of adoption is not new or ground-breaking. According to the Book of Exodus, Moses’ mother placed him in a basket to save his life, and he was drawn from the River Nile by the Pharoah’s daughter, who raised him as her own.

But until 1927, adoption in England and Wales was unregulated and carried out on an informal, private basis. The Adoption of Children Act 1926 provided the legal framework for the making of Adoption Orders²:

‘1(1) Upon an application in the prescribed manner by any person desirous of being authorised to adopt an infant who has never been married, the Court may, subject to the provisions of this Act, make an order (in this Act referred to as “an adoption order”) authorising the applicant to adopt that infant.’³

Section 2(3) of the Adoption of Children Act 1926 Act required the consent of every person who was a parent or guardian, or who had the actual custody of the infant, or who was liable to contribute to the support of the infant. However, the Court could dispense with any consent required if satisfied that the person whose consent is to be dispensed with:

a) Had abandoned or deserted the infant.
b) Could not be found.
c) Was incapable of giving consent.
d) Being liable to contribute to the support of the infant, either had persistently neglected or refused to contribute to such support; or
e) Was a person whose consent ought, in the opinion of the court and in all the circumstances of the case, to be dispensed with.

The Adoption of Children (Regulation) Act 1939⁴ was brought into force and its aims included regulating the making of arrangements by adoption societies and other persons, providing for the supervision of adopted children by welfare authorities in certain cases, and restricting the making and receipt of payments in connection with the adoption of children.

The role of “the Local Authority” to make and participate in arrangements for the adoption of children was declared by section 7(2) of the Adoption of Children Act 1949.⁵

Further Adoption Acts followed, and the Adoption and Children Act 2002 provides the current legislative framework for adoption (including in respect of contact, section 26). Section 46(6) requires that contact be considered before an adoption order is made but does not create a positive duty to promote contact. Section 51A provides a further framework for the court to make an order (when making the adoption order or at any time afterwards) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order.

In July 2022, the Joint Committee on Human Rights published a report titled, ‘The Violation of Family Life: Adoption of Children of Unmarried Women 1949-1976’⁶. The report acknowledged the cruel and brutal treatment of unmarried women who became pregnant during the 50s, 60s and 70s, together with the lifelong impact of those experiences on the children and their parents. The overarching themes of the report are “shame”, “stigma” and the “forced” nature of the adoptions: ‘We also share the strong antipathy to the allegation that they “gave up” their babies for adoption, which perpetuates the fiction that the mothers had a choice’ [paragraph 8].

On identity, at paragraphs 73-74, the report said:

‘One witness described how they felt “stripped of my identity”. Others felt unable to ask questions about their background. One witness: “was admonished when I wanted to know who I was. It destroyed my sense of security and calm.” Until they started to look into their background, another witness: “had not realised… how desperate I was to know my true identity… I also wanted to know why I had been given up for adoption.” One adopted mother wrote of her son: “I know he has always felt different and left out in some way.”

Some vividly described their reaction at discovering their own birth name. On seeing her birth certificate, Liz Harvie said:

I saw my birth mother’s name for the first time, my birth father’s name, and their parents’ names and, most oddly for me, the name I was given at birth. It was like I was discovering a different person. This person lived somewhere else with a different name. Who was she?”

In his memoir, ‘My Name is Why’, Lemn Sissay wrote,

‘At fourteen I tattooed the initials of what I thought was my name into my hand. The tattoo is still there but it wasn’t my name. It’s a reminder that I’ve been somewhere I should never have been. I was not who I thought I was. The Authority knew it but I didn’t.’

These testimonies are a stark reminder of the importance of ensuring that adoptees can integrate their understanding of their life story with their current sense of self and identity. The Family Court, when making orders for adoption, should consider whether the child’s welfare is best served by remaining in contact with his or her birth family.

In ‘Adapting Adoption to the Modern World’⁷, Sir Andrew McFarlane sought ‘Firstly, to raise public awareness of the fact that the Family Court is regularly making orders which will have a profound impact throughout their lives on those who are adopted and their families. Secondly to suggest that there is a pressing need for courts and those who advise them in these matters to modernise the approach that is taken to supporting a young, adopted person by enhancing the degree to which they may maintain some form of relationship with their birth family after adoption.’ Sir Andrew did not flinch away from the shameful history of forced adoption, both in England and Wales and in other jurisdictions. And he shared his belief that some elements of the culture surrounding the historical model of adoption remain in modern practice, in particular regarding the approach to what contact (if any) there should be between an adopted child and their birth family.

These days, most children are adopted from care, having been removed from their family due to abuse or neglect. They are more likely to have memories and an emotional bond with their birth families. And they are also likely to have experienced ongoing contact with their birth families during Family Court care proceedings. They will have memory boxes, photographs and keepsakes, and possibly ongoing letterbox contact.

On 7 November 2024, the adoption sub-group of the Public Law working group published their ‘Recommendations for best practice in respect of adoption’.⁸ Having conducted extensive research, the influential issues were listed as follows [paragraph 65]:

a) There is considerable evidence that transparency and openness around the circumstances and experiences of the adoptee’s birth family is beneficial to an adopted child.
b) The purpose of contact post-adoption is for the adoptee about enabling a process to help them understand their experiences and develop a sense of identity. Existing relationships with birth parents must change to take into account their different role as a result of the legal process of adoption.
c) Separating siblings can lead to an enduring sense of loss.
d) There are strong indications that face-to-face contact helps adoptees develop a sense of identity, accept the reasons why they were adopted and move forward with their lives.
e) However, ensuring that contact is safe for the child is pivotal to positive outcomes.
f) Communication with and understanding from the parties involved in contact (birth parents or other relatives/adoptees/adopters) is an important component in its success.
g) Despite the research indicating the benefits of face-to-face contact, where it can be safely managed, the overwhelming majority of cases continue to recommend only letterbox contact. Where direct contact does occur it often happens without any formal agreement being in place.
h) Letterbox contact can prove problematic. A high number of arrangements stall as a result of one (or both) parties failing to maintain the arrangement. This leaves many adoptees without any effective contact from birth families.
i) The experience in Northern Ireland tends to suggest that a shift in mindset by professionals involved in the process of adoption and strong guidance from the judiciary can bring about a change in approach to post adoption contact without the need for changes in primary legislation.

The recommendations following the research included:

a) There needs to be a sea change in the approach to the question of face-to-face contact between the adopted child and the birth family or other significant individuals. This will not be safe for all adopted children, but the current system whereby face-to-face contact is the exception rather than the rule is outdated. Direct contact should be expected to continue in early permanence placements where it has been working well.
b) Social workers should where necessary manage and support direct contact.
c) Adoptive and birth families should have a named worker they can approach in respect of letterbox contact provisions.
d) As a minimum, all siblings who are not placed together should receive the information suggested in the “Charter for Siblings” set out in Beckett’s ‘Beyond Together & Apart’ practice guide.
e) There should be consistent training for prospective adopters throughout England and Wales.
f) There should be ongoing training for social work practitioners and lawyers as to the benefits of open adoption. The full range of contact options (including digital options) should be actively considered by professionals and the court during care and placement proceedings, rather than an assumption that contact will be via letterbox only.
g) Training for prospective adopters and professionals should include the outcome of research and the voices of adopted people, adoptive parents, birth parents, siblings and other members of the birth family setting out their feelings on contact.
h) Birth parents should be signposted to independent support which can provide support workers to enable birth parents to understand how they can continue to be involved in their child’s life through different types of contact as soon as adoption is identified as a possible outcome.
i) Consideration should be given to a best practice guidance which deals specifically with the approach of practitioners to post-adoption contact.
j) Identification of those persons who are/may be important to a child should be undertaken at the Family Group Conference and during any pre-proceedings kinship assessment stage.
k) When preparing the mandatory genogram for the SWET, there should be an eco-map for ‘important relationships’.
l) There should be specific guidance as to the prospective roles of child protection social workers and adoption social workers including a clear expectation of when they will begin liaising.
m) Adoptive parents should, as a matter of course, write a settling-in letter to the birth family.
n) Consideration should be given in every case to a meeting between the adopters and members of the birth family.
o) Later life letters from the birth family (in addition to the one prepared by the social worker) to the adopted child should be considered and timetabled.
p) Life story books should be available by the time the adoption order is made and should include reference to all those people who have been identified as important to the child.
q) Examples of post-adoption agreements and future contact plans should be drawn up and circulated nationally at this stage.
r) There should be a continued line of communication between the adoption social worker and the birth parents so that the adoption social worker can reassess the ability of a relative/other to have contact post-proceedings.
s) Any documents shared with prospective adopters about the birth family should be balanced in their approach.
t) After the adoption order is made, periodic reviews of contact plans should be offered by the adoption social worker to ensure the plan is still meeting the child’s needs and to consider any changes to the contact or support for contact that might be needed.

In R & C (Adoption or Fostering) [2024] EWCA Civ 1302, Baker LJ acknowledged the changing nature of adoption and the renewed discussion about open adoption. In opening the Judgment, Baker LJ reiterated the clear principle that, at the stage of making an order under section 21 of the Adoption and Children Act 2002, authorising a local authority to place a child for adoption, it is the court, rather than the local authority or any other person, which has the responsibility for determining whether there should be ongoing contact between the child and the birth family [paragraph 2]. He went on to explain that,

‘6. Unlike newborn infants, older children placed for adoption have experiences, memories and relationships arising out of living within their birth families. They need the security and permanency which adoption provides. But in many cases they also need to sustain their relationships with some members of their birth families. All adopted children need to develop an understanding of their background and identity. For infants, that can often be achieved through life story work and letter box contact. But for older children, sustaining their sense of identity will in many cases be best achieved by continuing direct contact with members of their birth family.

7. It is to accommodate these twin needs that the concept of open adoption has come to the fore in recent years. Not everyone with personal experience of adoption is comfortable with this development. But the preponderance of opinion amongst those working and researching in the field is that, in many cases, it is in the interests of adopted children to continue to have some direct contact with members of their birth family.’

It is unclear whether Baker LJ considers that an adopted infant’s needs can often be met throughout their minority through life story work and letterbox contact or whether that need may change as they grow older and develop their own sense of identity. But, in any event, all decisions taken about a child’s contact with their birth family must be tailored to that particular child’s needs and circumstances.

Baker LJ set out the fundamental principles in section 1 of the Adoption and Children Act 2002, emphasising that under section 1(2), “the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life”. Of course, practitioners are familiar with the paramountcy principle found in section 1(1) of the Children Act. But Baker LJ points out that the 2002 Act is qualified by the words, “throughout his life”, which are absent from section 1(1) of the Children Act 1989 [paragraph 10]. The provisions in section 1 of the 2002 apply whenever the court or an adoption agency is coming to a decision relating to the adoption of a child, which is drafted to include any proceedings where the orders that might be made by the court include an order for contact under section 26 or 51A (or the revocation or variation of such an order) [paragraph 13, section 1(7)].

The exceptionality of an order for post-adoption contact with members of the birth family against the wishes of adopters, even as attitudes towards the benefits of such contact began to change, is evident from Baker LJ’s exposition of the case law [paragraphs 22 onwards]. For example, in Re R (Adoption: Contact) [2005] EWCA Civ 1128, Wall LJ observed (at paragraph 49):

“contact is more common, but nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of contact with which they are not in agreement is extremely, and remains extremely, unusual.”

And Baker LJ concludes that, any “sea change” in the years following the implementation of the 2002 Act did not result in a wider imposition of orders for post-adoption contact against the wishes of adopters. There has been no change to at Adoption and Children Act 2002, section 26.

Whilst there has not been any change in the law, that does not mean that there will not be a change in practice, or our understanding of how contact arrangements can best meet an adopted child’s needs in the short and longer term. We are all better lawyers for listening to the voices and experiences of those whose lives have been shaped by the decisions made by the Family Court. Those voices are powerful. And, as a result, there is a new emphasis on the benefits of flexibility, openness and supporting children to have fulfilling and meaningful post-adoption contact.

Anna Yarde

May 2025

1. Canongate Books, 2019 ↩︎
2. https://www.legislation.gov.uk/ukpga/1926/29/pdfs/ukpga_19260029_en.pdf ↩︎
3. According to section 1(2), the word “infant” means a person under the age of 21 ↩︎
4. https://www.legislation.gov.uk/ukpga/Geo6/2-3/27/enacted ↩︎
5. https://www.legislation.gov.uk/ukpga/Geo6/12-13-14/98/enacted ↩︎
6. https://publications.parliament.uk/pa/jt5803/jtselect/jtrights/270/report.html ↩︎
7. The Mayflower Lecture 2023, https://www.judiciary.uk/speech-by-sir-andrew-mcfarlane-adapting-adoption-to-the-modern-world/ ↩︎
8. https://www.judiciary.uk/guidance-and-resources/wholesale-reform-to-adoption-process-is-needed-says-public-law-working-group/ ↩︎

Related areas

• Public Law Children
• Adoption